DOCSLIB.ORG

1 Comparative Legal Histories Workshop

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

Department of Sociology Comparative Legal Histories Workshop: Colonial/Postcolonial India and Mandatory Palestine/Israel Stanford Law School Faculty Lounge June 6, 2011 Description In recent years, an impressive body of scholarship has emerged on colonial legal history. Some of this work has focused on Indian and Israeli legal history. While both contemporary Indian and Israeli law are in some senses a product of English law, many additional legal sources, including religious and customary law, have played a significant role in shaping the corpus of law in both countries. This history has yielded complex pluralistic legal orders which faced, and still face, similar problems, including the ongoing effects of the British colonial legacy and postcolonial partition, tensions between secularism and religion, and also the desire to absorb universalizing western culture while maintaining some elements of tradition. The goal of our workshop is to bring together a group of legal historians interested in comparative colonial histories who are studying different aspects of the history of Indian and Israeli law. The workshop will be a one-day informal gathering that would combine a discussion of trends in comparative colonial legal history with an opportunity for participants to present their research projects. Our objective is to create a forum where legal historians who may not necessarily be in dialogue with one another can interact, exchange ideas, and perhaps even begin collaborative research projects. The workshop is organized by Assaf Likhovski (Tel Aviv University) Renisa Mawani (UBC) and Mitra Sharafi (UW Law School). It is funded by the David Berg Institute for Law and History at Tel Aviv University, the Institute for Legal Studies, University of Wisconsin Law School, and the Department of Sociology at the University of British Columbia, and hosted by Stanford Law School. 1 Program 08:00 – Minibus will pick-up participants from the Westin St. Francis in San Francisco. We will meet at the front desk at 07:45. 09:00-10:00 Breakfast at the Faculty Lounge, Stanford Law School. 10:00-11:00 - Introductory Session: Indian and Israeli Legal History Co-Chairs: Marc Galanter (Wisconsin) & Ron Harris (Tel Aviv) Reading materials: India: Rajeev Dhavan, "The Indian Subcontinent: An Overview of Indian Law," in Stanley N. Katz, ed., The Oxford International Encyclopedia of Legal History (Oxford: Oxford University Press, 2009, online edition accessed on 3 Jan. 2011). Israel: Ron Harris, Alexandre Kedar, Pnina Lahav & Assaf Likhovski, "Israeli Legal History: Past and Present," in Ron Harris et al. eds., The History of Law in a Multicultural Society: Israel 1917-1967 (Dartmouth UK: Ashgate, 2002), pp. 1-26. Comparative Legal History: Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1600 (Cambridge: Cambridge University Press, 2002), pp. 127-166. 11:00-11:15 - Break 11:15-12:15 – Transnational Movements and Transplantations Renisa Mawani (UBC), Between Colonial India and the Diaspora: Racial Circuits of Legality across the Pacific James Jaffe (Wisconsin), Justice, Fairness, and Empire: Informal Dispute Resolution in England and Colonial India, 1780-1850 Assaf Likhovski (Tel Aviv), The Universal and the Particular in Income Tax Legislation in Mandatory Palestine 12:15-12:30 - Break 12:30-13:50 - Crime and Criminal Law and Procedure Binyamin Blum (Stanford), Rules of Colonial Difference: The Fate of the Indian Codes in Mandate Palestine Yoram Shachar (IDC Herzliya), Raj, Mandate and State: The influence of the Indian Penal Code on the Criminal Law of Israel 2 Elizabeth Kolsky (Villanova), The Law of the Colonial Frontier and the State of Exception: British India’s North-West Frontier Mitra Sharafi (Wisconsin), Medical Jurisprudence in British India 13:50-14:30 - Lunch 14:30-15:30 – Family and Religious Law Chandra Mallampali (Westmont College), Escaping the Grip of Personal Law in Colonial India Ashwini Tambe (Toronto), Girlhood in the Law in Modern India Daphne Barak-Erez (Tel Aviv), Symbolic Constitutionalism: On Sacred Cows and Abominable Pigs 15:30-15:45 - Break 15:45-16:45– Markets, Corporations, Trusts Ritu Birla (Toronto), The Nomos of the Globe: Legal Worlds of Capital Ron Harris (Tel Aviv), On the Transplantation of British Company Law in Post-Ottoman Palestine and in the Empire in General Adam Hofri-Winogradow (Hebrew University), Zionist Settlers and the English Private Trust in Mandate Palestine 16:45-17:00 - Break 17:00-18:00 - Law and the Postcolonial State Rohit De (Princeton), A Republic of Writs: Litigious Citizens, the Nehruvian State and the Rule of Law in India Alexandre (Sandy) Kedar (Haifa), The British, Indian and Pakistani sources of the Israeli Absentee Property Act of 1950 Yifat Holzman-Gazit (College of Management, Rishon Lezion), Israel’s Land Expropriation Law and the Legacy of the Colonial Land Acquisition Ordinance 18:00-18:30 - Concluding Remarks 3 18:30 Minibus will take participants back to the Westin St. Francis, stopping on the way at San Francisco Airport (SFO). Participants who are going to the airport after the workshop can bring their luggage and store it at the law school. Please remember to pick it up and bring it to the Faculty Lounge at 17:30 (the facilities staff at the law school leave at 18:00). General Information: 1. Each speaker will have ten minutes to present an outline of her or his project, followed by ten minutes for questions and comments. 2. The workshop's website can be found at http://www.law.tau.ac.il/Eng/?CategoryID=430. The website contains the reading materials for the first session and also a list of some secondary sources on the legal history of Mandatory Palestine and Israel. 3. Reading materials on South Asian legal history can be found at: A. http://hosted.law.wisc.edu/wordpress/sharafi/# (Mitra Sharafi's South Asian Legal History Resources webpage, see especially the “bibliography” section). B. http://www.soci.ubc.ca/index.php?id=13495 (Renisa Mawani’s bibliography on Law and the South Asian Diaspora). C. http://marcgalanter.net/Documents/indianlaw.htm (Marc Galanter's website). 4. Administrative information: A. Administrative Organizer at Stanford: Patricia "Pat" Adan Stanford Law School 559 Nathan Abbott Way Stanford CA 94305-8610 Tel: (650) 723-5173 Fax: (650) 725-0253 Email: [email protected] B. Assaf Likhovski (cell) +972-546-779555 or Mitra Sharafi (cell) 608-354-9141. 4 The Abstracts I. Transnational Movements and Transplantations Renisa Mawani (University of British Columbia, Dept. of Sociology, [email protected]), Between Colonial India and the Diaspora: Racial Circuits of Legality across the Pacific This project traces the entangled histories of late-nineteenth and early-twentieth-century colonial India and the Indian diaspora. Focused on the 1914 journey of the Komagata Maru, a Japanese steam-ship carrying 376 labourers from Punjab, the larger research of which this is a part draws from archival records in Canada, London, India, Malaysia, and Hong Kong, and approaches the ship’s route as a transnational journey at the high mark of British imperialism. Specifically, my interest lies in tracking the circuits of people, law, legality, and racial truths between India, Malaysia, Hong Kong, and Canada. The specific paper that I will discuss at the workshop will address a small aspect of this work and is inspired by questions I addressed in my recent book, Colonial Proximities (2009). This book explores the dynamic encounters between aboriginal peoples, Chinese migrants, people of mixed-race ancestry, and Europeans, and how these encounters were narrated and documented through legal struggles over liquor, prostitution, and cannery labour. Extending my interest in indigenous/ non-European contacts, this paper tracks the specters of Indigeneity that were mobilized both by Canadian authorities and by British Indian subjects in struggles over Indian migration and imperial inclusion/ exclusion. While the Komagata Maru’s arrival was depicted as potentially endangering the legal status of aboriginal peoples in Canada, the ship’s supporters in Lahore asserted their own conceptions of Indigeneity through the figure of the African. This was a claim to their racial superiority, legal sophistication, and as evidence of their readiness to join the wider imperial polity. By tracing the racial circuits of legality and Indigeneity that were mobilized on both sides of the Pacific and that moved between India, Hong Kong, Malaysia, and Canada, this paper asks how global histories might unsettle our prevailing conceptions of racial-legal force beyond the familiar binaries of national/ global, metropole/ colony, native/ white. James Jaffe (University of Wisconsin-Whitewater, Dept. of History, [email protected]), Justice, Fairness, and Empire: Informal Dispute Resolution in England and Colonial India, 1780-1850 This project examines the impact of the transnational transference of informal dispute resolution practices and, concomitantly, comparative ideals of justice, between England and early colonial India. It does so through the historical analysis of the attempts of the East India Company to adapt, combine, and often conflate the arbitration practices of late eighteenth and early nineteenth-century England with the so-called “panchayat system” of in the colonial Bombay Presidency. In contrast to the received interpretation of the role and functioning of dispute resolution during the colonial period, this project argues that the attempt to translate and
Recommended publications
  • The-Legal-Status-Of-East-Jerusalem.Pdf

    The-Legal-Status-Of-East-Jerusalem.Pdf

    December 2013 Written by: Adv. Yotam Ben-Hillel Cover photo: Bab al-Asbat (The Lion’s Gate) and the Old City of Jerusalem. (Photo by: JC Tordai, 2010) This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the authors and can under no circumstances be regarded as reflecting the position or the official opinion of the European Union. The Norwegian Refugee Council (NRC) is an independent, international humanitarian non- governmental organisation that provides assistance, protection and durable solutions to refugees and internally displaced persons worldwide. The author wishes to thank Adv. Emily Schaeffer for her insightful comments during the preparation of this study. 2 Table of Contents Table of Contents .......................................................................................................................... 3 1. Introduction ........................................................................................................................... 5 2. Background ............................................................................................................................ 6 3. Israeli Legislation Following the 1967 Occupation ............................................................ 8 3.1 Applying the Israeli law, jurisdiction and administration to East Jerusalem .................... 8 3.2 The Basic Law: Jerusalem, Capital of Israel ................................................................... 10 4. The Status
  • West Bank and Gaza 2020 Human Rights Report

    West Bank and Gaza 2020 Human Rights Report

    WEST BANK AND GAZA 2020 HUMAN RIGHTS REPORT EXECUTIVE SUMMARY The Palestinian Authority basic law provides for an elected president and legislative council. There have been no national elections in the West Bank and Gaza since 2006. President Mahmoud Abbas has remained in office despite the expiration of his four-year term in 2009. The Palestinian Legislative Council has not functioned since 2007, and in 2018 the Palestinian Authority dissolved the Constitutional Court. In September 2019 and again in September, President Abbas called for the Palestinian Authority to organize elections for the Palestinian Legislative Council within six months, but elections had not taken place as of the end of the year. The Palestinian Authority head of government is Prime Minister Mohammad Shtayyeh. President Abbas is also chairman of the Palestine Liberation Organization and general commander of the Fatah movement. Six Palestinian Authority security forces agencies operate in parts of the West Bank. Several are under Palestinian Authority Ministry of Interior operational control and follow the prime minister’s guidance. The Palestinian Civil Police have primary responsibility for civil and community policing. The National Security Force conducts gendarmerie-style security operations in circumstances that exceed the capabilities of the civil police. The Military Intelligence Agency handles intelligence and criminal matters involving Palestinian Authority security forces personnel, including accusations of abuse and corruption. The General Intelligence Service is responsible for external intelligence gathering and operations. The Preventive Security Organization is responsible for internal intelligence gathering and investigations related to internal security cases, including political dissent. The Presidential Guard protects facilities and provides dignitary protection.
  • An Examination of Israeli Municipal Policy in East Jerusalem Ardi Imseis

    An Examination of Israeli Municipal Policy in East Jerusalem Ardi Imseis

    American University International Law Review Volume 15 | Issue 5 Article 2 2000 Facts on the Ground: An Examination of Israeli Municipal Policy in East Jerusalem Ardi Imseis Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Imseis, Ardi. "Facts on the Ground: An Examination of Israeli Municipal Policy in East Jerusalem." American University International Law Review 15, no. 5 (2000): 1039-1069. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. FACTS ON THE GROUND: AN EXAMINATION OF ISRAELI MUNICIPAL POLICY IN EAST JERUSALEM ARDI IMSEIS* INTRODUCTION ............................................. 1040 I. BACKGROUND ........................................... 1043 A. ISRAELI LAW, INTERNATIONAL LAW AND EAST JERUSALEM SINCE 1967 ................................. 1043 B. ISRAELI MUNICIPAL POLICY IN EAST JERUSALEM ......... 1047 II. FACTS ON THE GROUND: ISRAELI MUNICIPAL ACTIVITY IN EAST JERUSALEM ........................ 1049 A. EXPROPRIATION OF PALESTINIAN LAND .................. 1050 B. THE IMPOSITION OF JEWISH SETTLEMENTS ............... 1052 C. ZONING PALESTINIAN LANDS AS "GREEN AREAS".....
  • The Absentee Property Law and Its Implementation in East Jerusalem a Legal Guide and Analysis

    The Absentee Property Law and Its Implementation in East Jerusalem a Legal Guide and Analysis

    NORWEGIAN REFUGEE COUNCIL The Absentee Property Law and its Implementation in East Jerusalem A Legal Guide and Analysis May 2013 May 2013 Written by: Adv. Yotam Ben-Hillel Consulting legal advisor: Adv. Sami Ershied Language editor: Risa Zoll Hebrew-English translations: Al-Kilani Legal Translation, Training & Management Co. Cover photo: The Cliff Hotel, which was declared “absentee property”, and its owner Ali Ayad. (Photo by: Mohammad Haddad, 2013). This publication has been produced with the financial assistance of the Norwegian Ministry of Foreign Affairs. The contents of this publication are the sole responsibility of the authors and can under no circumstances be regarded as reflecting the position or the official opinion of the Norwegian Ministry of Foreign Affairs. The Norwegian Refugee Council (NRC) is an independent, international humanitarian non-governmental organisation that provides assistance, protection and durable solutions to refugees and internally displaced persons worldwide. The author wishes to thank Adv. Talia Sasson, Adv. Daniel Seidmann and Adv. Raphael Shilhav for their insightful comments during the preparation of this study. 3 Table of Contents 1. Introduction ...................................................................................................... 8 2. Background on the Absentee Property Law .................................................. 9 3. Provisions of the Absentee Property Law .................................................... 14 3.1 Definitions ....................................................................................................................
  • US/Israeli Comparative Law Summer 2009 Naomi Gale, (Schusterman Visiting Professor) University of Colorado, Boulder

    US/Israeli Comparative Law Summer 2009 Naomi Gale, (Schusterman Visiting Professor) University of Colorado, Boulder

    Law US/Israeli comparative Law Summer 2009 Naomi Gale, (Schusterman Visiting Professor) University of Colorado, Boulder Maymester: 5/13 – 6/2 Monday-Friday: 9:00am – 12:15pm Wolf Law Building: Room 306 Office Hours: Tues 1:00pm-3pm Course Description This course compares the various facades of the Israeli and American Legal Systems. Both systems derived from the British Common Law System, however each developed its own uniqueness in accordance with societal and legal forces, each distinctive to its own society with its unique history. For example, the legal system of Israel today belongs to the family of mixed jurisdictions combining tenets of the Common Law and the Civil Law, with Israel’s unique history and characteristics, and the revolutionary changes in the legal system since the independence of the state. We will discuss the centrality of the Judiciary and compare the Supreme Courts and the High Courts of Justice in both countries, particularly their conduct in the arena of the protection human rights and civil rights, particularly of minorities, under the American Constitution and under the Israeli Basic Laws. We will also study the structures of the general court systems in both, while paying special attention to specialized courts. Amongst those, a special attention will be given to the study of the religious court in Israel, its centrality in the life of Israelis and in the shaping of the laws of personal status, such as the absence of civil marriage and divorce and the position of women in Israeli society. Major areas the course covers are: Constitutional Law: we will draw comparison between the American Constitution and the Basic Laws of Israel, which are of a higher normative status, and are a key component of Israel's constitutional law.
  • Israel: Acquisition of Citizenship, Two Types of Passport, and Tax

    Israel: Acquisition of Citizenship, Two Types of Passport, and Tax

    The Henley & Partners - Kochenov EXPERT COMMENTARY Israel: Acquisition of Citizenship, Two Types of Passport, and Tax Implications By: Eli Gervits Henley & Partners – Kochenov Quality of Nationality Index • 2nd Edition 2016 Israel: Acquisition of Citizenship, Two Types of Passport, and Tax Implications Israel: Acquisition of Citizenship, Two Types of Passport, and Tax Implications Eli Gervits Eli Gervits Law Offices, Tel Aviv, Israel The Israeli nationality is somewhat unique compared to other nationalities, distinguishing between different categories of citizens. Two passports are issued in this respect by the State of Israel: an ordinary passport and the Israeli Laissez-passer.1 The latter is issued in exceptional circumstances, including to: • Israeli citizens who have stayed more than 10 years abroad without visiting the motherland • Israeli citizens who have lost or destroyed two or more passports in a period of 10 years • Most importantly, citizens who have just acquired Israeli citizenship status by virtue of the ‘Law of Return’ (new legislation in this respect passed in Israeli Parliament but legal practice hasn't taken shape yet) Israeli citizenship can be acquired by birth, by way of the Law of Return, through residence or naturalization. Israeli citizenship is granted by birth to children whose mother or father are Israeli citizens regardless of whether the child was born in Israel or outside of it.2 This also applies to children born after the death of either parent, if the late parent was a citizen of Israel at the time of death. The overwhelming majority of Israeli citizens who do not acquire their citizenship by birth receive it under the provisions of the Law of Return of 1950.
  • A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution WATCH

    A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution WATCH

    HUMAN RIGHTS A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution WATCH A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution Copyright © 2021 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 978-1-62313-900-1 Cover design by Rafael Jimenez Human Rights Watch defends the rights of people worldwide. We scrupulously investigate abuses, expose the facts widely, and pressure those with power to respect rights and secure justice. Human Rights Watch is an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all. Human Rights Watch is an international organization with staff in more than 40 countries, and offices in Amsterdam, Beirut, Berlin, Brussels, Chicago, Geneva, Goma, Johannesburg, London, Los Angeles, Moscow, Nairobi, New York, Paris, San Francisco, Sydney, Tokyo, Toronto, Tunis, Washington DC, and Zurich. For more information, please visit our website: http://www.hrw.org APRIL 2021 ISBN: 978-1-62313-900-1 A Threshold Crossed Israeli Authorities and the Crimes of Apartheid and Persecution Map .................................................................................................................................. i Summary ......................................................................................................................... 2 Definitions of Apartheid and Persecution .................................................................................
  • Israel 2020 Human Rights Report

    Israel 2020 Human Rights Report

    ISRAEL 2020 HUMAN RIGHTS REPORT EXECUTIVE SUMMARY Israel is a multiparty parliamentary democracy. Although it has no constitution, its parliament, the unicameral 120-member Knesset, has enacted a series of “Basic Laws” that enumerate fundamental rights. Certain fundamental laws, orders, and regulations legally depend on the existence of a “state of emergency,” which has been in effect since 1948. Under the Basic Laws, the Knesset has the power to dissolve itself and mandate elections. On March 2, Israel held its third general election within a year, which resulted in a coalition government. On December 23, following the government’s failure to pass a budget, the Knesset dissolved itself, which paved the way for new elections scheduled for March 23, 2021. Under the authority of the prime minister, the Israeli Security Agency combats terrorism and espionage in Israel, the West Bank, and Gaza. The national police, including the border police and the immigration police, are under the authority of the Ministry of Public Security. The Israeli Defense Forces are responsible for external security but also have some domestic security responsibilities and report to the Ministry of Defense. Israeli Security Agency forces operating in the West Bank fall under the Israeli Defense Forces for operations and operational debriefing. Civilian authorities maintained effective control over the security services. The Israeli military and civilian justice systems have on occasion found members of the security forces to have committed abuses. Significant human
  • The Palestinian Bid for Statehood: Its Repercussions for Business And

    The Palestinian Bid for Statehood: Its Repercussions for Business And

    Journal of International Business and Law Volume 12 | Issue 1 Article 6 2013 The alesP tinian Bid for Statehood: Its Repercussions for Business and Law Joshua Berzak Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/jibl Part of the Law Commons Recommended Citation Berzak, Joshua (2013) "The aleP stinian Bid for Statehood: Its Repercussions for Business and Law," Journal of International Business and Law: Vol. 12: Iss. 1, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/jibl/vol12/iss1/6 This Notes & Student Works is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Journal of International Business and Law by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Berzak: The Palestinian Bid for Statehood: Its Repercussions for Business THE PALESTINIAN BID FOR STATEHOOD: IT'S REPERCUSSIONS FOR BUSINESS AND INTERNATIONAL LAW Joshua Berzak* INTRODUCTION The purpose of this note is to analyze the potential impact of the Palestinian Authority's bid for membership into the United Nations on international business. Over the course of the past six decades, much has been written about the Palestine Authority's legitimacy as an independent nation as defined by international law. Debate has ranged between those who have argued Palestine's accordance with the requirements for statehood, and those who have vehemently denied statehood for the Palestinians. This note examines how the impact that a bid for membership in the United Nations, and a claim to statehood, will potentially affect Palestine's economic environment.
  • An Assessment of Higher Education Needs in the West Bank and Gaza

    An Assessment of Higher Education Needs in the West Bank and Gaza

    United States Agency for International Development An Assessment of Higher Education Needs in the West Bank and Gaza Submitted by The Academy for Educational Development Higher Education Support Initiative Strategic Technical Assistance for Results with Training (START) Prepared by Maher Hashweh Mazen Hashweh Sue Berryman September 2003 An Assessment of Higher Education Needs in the West Bank and Gaza Acknowledgments We would like first to extend our greatest gratitude to the Ministry of Education and Higher Education for all the support it gave in the development of this assessment. Special thanks go to Mr. Hisham Kuhail, Assistant Deputy Minister for Higher Education; Dr. Khalil Nakhleh, Head of Commission on Quality Assurance and Accreditation; Dr. Fahoum Shalabi, Director General for Development and Scientific Research/MOHE; and Ms. Frosse Dabiet, Director of International Relations / HE Sector. This work would not have been possible without the cooperation and efforts of the Deans of the Community Colleges and the Universities' Vice-Presidents for Academic Affairs. The Academy for Educational Development (AED) did everything in its capacity to facilitate our work. Special thanks are due here to Elaine Strite, Chief of Party, and Jamileh Abed, Academic Counselor. The important feedback and support of Sue Berryman / World Bank allowed us to better develop the structure, conclusions, and recommendations for this report. Finally, our appreciation and gratitude go to USAID for sponsoring this work. Special thanks go to Ms. Evelyn Levinson, former Higher Education and Training Specialist and Mr. Robert Davidson, Higher Education Team Leader, for their continuous support. Maher Hashweh and Mazen Hashweh Notice The views presented herein are those of the authors and should not be interpreted as reflecting those of the Agency for International Development or the Academy for Educational Development.
  • THE PALESTINIAN RIGHT of RETURN in INTERNATIONAL HUMAN RIGHTS LAW the Palestinian Right of Return JEREMIE MAURICE BRACKA*

    THE PALESTINIAN RIGHT of RETURN in INTERNATIONAL HUMAN RIGHTS LAW the Palestinian Right of Return JEREMIE MAURICE BRACKA*

    PAST THE POINT OF NO RETURN? THE PALESTINIAN RIGHT OF RETURN IN INTERNATIONAL HUMAN RIGHTS LAW The Palestinian Right of Return JEREMIE MAURICE BRACKA* [This article examines the interpretive ambiguity and political obfuscation surrounding the Palestinian right of return in international human rights law. As a bitterly contested site of discourse, it is a topic that penetrates both the Israeli and Palestinian social narratives. Historically, the right of return debate is intrinsically linked to the complexity of the Palestinian refugee crisis, and the conflict over its creation — the right of return is the lung through which the Israeli–Palestinian struggle breathes. In the legal arena, the right of return’s treatment in the resolutions of the United Nations General Assembly, international treaty obligations and customary law warrants close scholarly attention. The Palestinians as non-nationals, and as a group of mass displaced persons, face unique challenges under human rights instruments. In the wake of Oslo, and more recently with Israel’s disengagement from Gaza, the right of return continues to be at the forefront of political contestation. In light of the symbolic resonance of unqualified return, this article focuses squarely on the asserted right of the 1948 Palestinian refugees and their descendants to return to Israel proper.] CONTENTS I Introduction II The Factual Framework A Rupture and Return: The 1948 ‘Blame Game’ B The Resonance of Return: Competing Nationalisms 1 Palestinian Conceptions of Return 2 Israeli Conceptions of
  • CDL(1996)066</A>

    CDL(1996)066</A>

    CDL(1996)066e-restr Strasbourg, 5 September 1996 DRAFT OPINION ON THE DRAFT TEMPORARY CONSTITUTIONAL LAW FOR THE PALESTINIAN NATIONAL AUTHORITY IN THE TRANSITIONAL PERIOD prepared by the Secretariat on the basis of observations by C. Economides (Greece) J. Helgesen (Norway) and J. Robert (France) The present opinion, given within the framework of the Venice Commission's participation in the work of the task force on human rights and the judicial system in the autonomous Palestinian territories of the Parliamentary Assembly of the Council of Europe, relates to the 7th draft of the constitutional law for the Palestinian national authority prepared by the Legal Committee of the Palestinian Legislative Council (PLC) on 9 July 1996 (document CDL(96)61). The Commission is aware of the fact that this constitutional law is still under consideration and that it is possible that other drafts be prepared during the discussion before the Palestinian Legislative Council. Under these circumstances, the Commission's observations will be limited to the main points of the project. Moreover, one should note that the Commission has not considered the compatibility of the present project with the Israeli-Palestinian Agreements of 13 September 1993 and 4 May 1994. The text of the draft has been examined as it stands, having regard to its nature as a basic law for Palestine. First of all, the Commission finds, that the draft temporary constitutional law for the Palestinian national authority in the transitional period is a modern constitutional text very closely based on democratic principles. The following comments should be made with regard to the text: Article 3 While it is entirely normal that in its first article the constitutional text indicates that Palestine is a part of the Arab world and that the Palestinian people are part of the Arab nation (a statement which generally appears in several Arab Constitutions, in particular in the countries of the Maghreb), it is surprising that Article 3 states without hesitation that "Jerusalem is the capital of Palestine".